Veteranclaims’s Blog

August 27, 2021

Single Judge Application; § 5110; equitable tolling; On June 17, 2021, the Federal Circuit issued Arellano, which declined to revisit the rule that “equitable tolling is inapplicable to § 5110’s effective date rules.” Arellano v. McDonough, __ F.3d. , , 2021 WL 2460647at *18 (Fed. Cir. June 17, 2021) (6-6 decision) (Chen, J, concurring) (referencing Andrews v. Principi, 351 F.3d 1134, 1137-38 (Fed. Cir. 2003));

Filed under: Uncategorized — Tags: — veteranclaims @ 6:23 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-6189
STEVEN SIROIS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
FALVEY, Judge: Steven Sirois, who has been substituted in this appeal for deceased
Army veteran John G. Sirois, appeals through counsel a June 29, 2017, decision of the Board of
Veterans’ Appeals (Board) that denied an effective date earlier than March 19, 2003, for VA
benefits based on service-connected chloracne.1 This appeal is timely, the Court has jurisdiction
to review the Board’s decision, and single-judge disposition is appropriate. See 38 U.S.C.
§§ 7252(a), 7266(a); Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
On January 4, 2021, we stayed this case because the appellant’s request to equitably toll
the provisions of 38 U.S.C. § 5110 was similar to an argument that was then pending en banc
review by the U.S. Court of Appeals for the Federal Circuit in Arellano v. Wilkie, Fed. Cir. Docket
No. 20-1073. On June 17, 2021, the Federal Circuit issued Arellano, which declined to revisit the rule that “equitable tolling is inapplicable to § 5110’s effective date rules.” Arellano v. McDonough, __ F.3d. , , 2021 WL 2460647at *18 (Fed. Cir. June 17, 2021) (6-6 decision) (Chen, J, concurring) (referencing Andrews v. Principi, 351 F.3d 1134, 1137-38 (Fed. Cir. 2003)).
1 The Board also remanded the matter of a higher disability rating. We lack authority to address that nonfinal
matter. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (holding that a Board remand “does not represent a final
decision over which this Court has jurisdiction”).
2
We are asked to decide whether the Board erred in denying an earlier effective date.
Because the Board properly found that March 19, 2003, the date of the veteran’s initial chloracne
claim, was the earliest possible effective date for his award of benefits, the Board did not err in its
effective date determination. We are also asked to decide whether the Board should have equitably
tolled the effective date provisions of 38 U.S.C. § 5110 or referred the claim to the Secretary for
equitable relief. Section 5110, however, is not subject to equitable tolling, and we lack authority
to intervene in the Secretary’s exercise of equitable power. Thus, we will affirm that part of the
Board’s June 29, 2017, decision that assigned an effective date of March 19, 2003.
I. BACKGROUND
The veteran, whose service in Vietnam entitled him to a presumption of herbicide
exposure, suffered from chloracne since the 1970s. Record (R.) at 76-77, 647, 1039. He claimed
to have visited a VA clinic in April 1976 to obtain assistance with his condition, including filing a
claim for VA benefits. R. at 79. Upon arrival, however, he was told by a woman wearing a
stethoscope and lab coat that “[t]here is absolutely nothing to say that chloracne is a problem of
Agent Orange.” R. at 80. He, then, did not file a formal or written claim, and VA did not send him
a claim application. R. at 81.
Many years later, on March 19, 2003, the veteran filed a formal claim for benefits based
on chloracne. R. at 1047-56. VA granted service connection, but, in the decision here on appeal,
the Board denied an effective date earlier than the date of the veteran’s 2003 claim. R. at 3-4. The
Board acknowledged the veteran’s testimony about his conversation with the VA clinician in 1976
and found that it was competent evidence. R. at 7, 9. But, the Board explained, that conversation
did not warrant an earlier effective date because the law requires that a claim, formal or informal,
be in writing, and “[t]here is no evidence in the record of a formal or informal service connection
claim for chloracne consistent with the provisions of 38 C.F.R. § 3.1(p) prior to March 19, 2003.”
R. at 10. Additionally, the Board found that the veteran’s purported discussion of VA disability
compensation benefits with the clinician in 1976 was “undermine[d]” by the veteran’s statements
that he went to the clinic “seeking treatment, help with bills and pain.” R. at 11. Finally, the Board
noted the veteran’s argument that equity supported an earlier effective date, but explained that it
“is bound by the statutes enacted by Congress and as a result of their application, must find that an
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earlier effective date must be denied, and is without authority to grant benefits on the basis of
equity.” R. at 11.
II. ANALYSIS
The appellant contends that the veteran’s conversation with the VA clinician in 1976 was
an informal claim for benefits based on chloracne that remained pending and unadjudicated until
he was granted benefits in the claim stream on appeal. Appellant’s Brief (Br.) at 6. He maintains
that “[n]o writing was required” to file an informal claim in 1976, and that, once the informal claim
had been made, VA had to assist and provide him a formal claim application form. Id. at 6-7.
Because VA did not do so, and purportedly misled him into not filing a claim in 1976, he argues
that equity supports awarding an earlier effective date and estops the Secretary from arguing that
no claim was filed before March 19, 2003. Id. at 7-10.
If the veteran’s oral statements to the VA clinician in 1976 were an informal claim for
benefits, then he could be entitled to an earlier effective date. Under the legacy appeals system
applicable here, the effective date of an award of disability compensation based on an original
claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.
§ 5110(a) (2017); 38 C.F.R. § 3.400 (2018); see Mitchell v. McDonald, 27 Vet.App. 431, 433
(2015). And “a claim for benefits, whether formal or informal, remains pending until it is finally
adjudicated.” Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009). Additionally, as a Vietnam
veteran suffering from chloracne, he could be entitled to an earlier effective date under 38 C.F.R.
§ 3.816.
But, as the Board correctly concluded, no formal or informal claim was raised by the
veteran’s oral statements to the VA clinician in 1976. Even informal claims must be in writing.
Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that “permit[ting] an oral
statement to constitute the filing of an informal claim would create serious problems in the
operation of the veterans benefits programs”); Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009)
(“[A] communication in writing [is one of] the essential requirements of any claim, whether formal
or informal.”). And the Board found that the veteran’s allegation of discussing VA disability
compensation with the clinician was undermined by his other statements that he went to the VA
clinic in the 1970s to obtain medical treatment for his chloracne. R. at 11 (“The testimony that he
4
was seeking treatment, help with bills and pain further undermines the argument that he was
seeking compensation.”).
In view of the entire record, that finding is not clearly erroneous. See Canady v. Nicholson,
20 Vet.App. 393, 398 (2006) (“A Board determination of the proper effective date is a finding of
fact that the Court reviews under the ‘clearly erroneous’ standard.”); Gilbert v. Derwinski,
1 Vet.App. 49, 52 (1990) (‘”A finding is “clearly erroneous” when although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.”‘ (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948))). And, the Board’s explanation is understandable and facilitates judicial review. See
Allday v. Brown, 7 Vet.App. at 517, 527 (1995). Thus, the Board did not err in finding that the
veteran did not file an informal claim for benefits in 1976.
Because no claim was filed in 1976, and the appellant does not challenge the Board’s
determination that no other claim for chloracne was filed before March 19, 2003, we find no error
in the Board’s determination that an earlier effective date was not allowed. As the Board explained,
the earliest possible effective date for the veteran’s benefits award was March 19, 2003, the date
of the veteran’s first claim for benefits, because the effective date of an award of disability
compensation based on an original claim is the date of receipt of the claim or the date entitlement
arose, whichever is later. See 38 U.S.C. § 5110(a) (2017); 38 C.F.R. § 3.400 (2018).
Nor did the Board err in finding that it could not, in equity, waive the written claim
requirement, toll section 5110, or do some other action that would allow the veteran to obtain an
effective date not otherwise authorized by law. The Court sympathizes with the appellant’s
contention that the veteran may have received incorrect or bad advice from VA personnel about
his eligibility for service-connected benefits. But “[t]his Court and the Federal Circuit have
considered whether section 5110 is subject to equitable tolling and have found that it is not.” Taylor
v. Wilkie, 31 Vet. App. 147, 154 (2019) (citing Andrews, 351 F.3d at 1137-38). And the Board is
precluded from awarding benefits where they are not allowed by statute. See McTighe v. Brown,
7 Vet.App. 29, 30 (1994) (finding that, where a statute specifically provided an effective date as
the date of application, an earlier effective date was not allowed under equitable estoppel because
payment of government benefits must be authorized by statute); see also Office of Personnel
Management v. Richmond, 496 U.S. 414, 426 (1990). Although, as the appellant notes, estoppel
against the government has not been ruled out, our equitable powers “are not so broad” as to permit
5
the establishment of an earlier effective date for benefits with no earlier claim. Taylor, 31 Vet.App.
at 153.
Additionally, the appellant, maintaining that the veteran’s situation “certainly offer[s] a
factual basis for relief under [38 U.S.C. § 503],” argues that “the Board should have referred the
case to the Chairman of the Board of Veterans Appeals.” Appellant’s Br. at 7-10. But “the Board
. . . lacks jurisdiction to review the exercise of authority under 38 U.S.C. § 503(a), or the refusal
to exercise such authority, by the Secretary of Veterans Affairs.” Darrow v. Derwinski, 2 Vet.App.
303, 305 (1992). And our Court, whose jurisdiction extends only to review of those Board
decisions that finally grant or deny benefits, “does not have the power to compel the Secretary to
exercise his authority to grant equitable relief.” Smith v. Gober, 14 Vet.App. 227, 231 (2000). We
“lack[] jurisdiction even to review the exercise of the Secretary’s equity discretion.” Id. We
therefore lack authority to grant the appellant’s request. Moreover, because “the appellant is free
to apply directly to the Secretary for the exercise of his equitable-relief discretionary authority
under 38 U.S.C. § 503,” Brown v. Principi, 15 Vet.App. 421, 428 (2002), we fail to see how any
Board error could be prejudicial. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (noting that
the Court must take due account of the rule of prejudicial error).
III. CONCLUSION
For these reasons, the Board’s June 29, 2017, decision is AFFIRMED.
DATED: June 25, 2021
Copies to:
David M. Giangrossi, Esq.
VA General Counsel (027)

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